ON THE SITUATION OF HUMAN RIGHTS
RIGHT TO JUSTICE AND TO DUE PROCESS1
The right to justice and to due process is dealt with extensively and
exhaustively in Guatemala's internal judicial system.
Both the constitution of the republic and the corresponding subordinate
laws govern the various aspects of this right. It can be stated that, both
substantively and procedurally, the various provisions concerning the right to a
fair trial, freedom from ex post facto laws, the right to compensation, the
right to equal protection and the right to judicial protection, which are
established in the American Convention on Human Rights, are found in the
Guatemalan Constitution and in current legislation on the matter.
Based on the information available, this chapter will study the various
legal aspects which constitute the Guatemalan judicial system; and it will study
the actual functioning of the administration of justice and its direct effect on
the protection and observance of human rights in Guatemala.
Chapter I of this report referred briefly to the right to justice and to
due process when it analyzed the relative aspect of the state's political
organization and of human rights in the Guatemalan constitutional system.
As has been stated, the 1965 Constitution recognizes that all human
beings are equal in dignity and rights. It establishes the nonretroactivity of
the law, except in criminal matters when favorable to the guilty party. It
states that no person may be compelled in a criminal case to testify against
himself, against his spouse, or against relatives within the fourth degree of
consanguinity or second degree of affinity. It recognizes that the defense of
one's person and of one's rights is inviolable and establishes that no one may
be tried by a commission or by special courts. Moreover, the inhabitants of the
republic have the right to address petitions, individually or collectively, to
the authorities. Petitions regarding political matters are differentiated in
terms of procedure from petitions of other kinds addressed to administrative
authorities. The Constitution adds that the armed forces may neither debate nor
exercise the right of petition.2
The Guatemalan constitutional system establishes the separation of
powers, and states that it delegates its sovereignty to those powers, which are
not subordinate one to the other.
Title VII of the Constitution governs the judicial branch, and it is
divided into five chapters devoted, respectively, to General Provisions, the
Supreme Court of Justice, the Court of Appeals and Other Courts, the Court of
Amparo, and the Court of Constitutionality.
The General Provisions provide for the following, among other things:
is administered in accordance with the Constitution and the laws of the
republic. The authority to judge and to execute judgments rests with the courts
of justice. The other agencies of the state must offer the courts of justice any
assistance that may be required to carry out their decisions.
judicial function is exercised exclusively by the Supreme Court of Justice and
the other courts having ordinary or special jurisdiction. The administration of
justice is obligatory, gratuitous, and independent of the other functions of the
state. It shall always be open to the public except when morals, the security of
the state, or the national interest demands secrecy.
and judges must be native Guatemalans of recognized integrity and in the
enjoyment of their citizenship rights. Magistrates and judges must belong to the
professional association of lawyers, with the exception of those cases for which
the law provides otherwise.
judicial function is incompatible with the holding of an office in a political
party or labor union or with the status of minister of any religion. Municipal
mayors may serve as judges of lower courts in those cases and in the manner
prescribed by law.
President of Judiciary, the magistrates of the Supreme Court of Justice, of the
Court of Appeals, of the Contentious-Administrative Courts, of the Court of
Second Instance of Accounts, and of the Court of Conflicts of Jurisdiction, as
well as their respective alternates, shall be elected by the Congress of the
republic for a term of four years.
trials shall have more than two instances, and a magistrate or judge who has
exercised jurisdiction in one of these may not sit in the other instance nor in
cassation, for the same matter, under pain of responsibility. No court or
authority may try a case that has already been terminated, except in those cases
and forms of review specified by law.
of justice shall always observe the principle that the Constitution prevails
over any law or international treaty. In specific cases, in any instance and in
cassation, before sentence has been pronounced, the parties may claim
unconstitutionality of all or a part of a law and the court must rule on the
matter. If the law is declared to be unconstitutional, the sentence shall be
limited to a statement that the legal provision does not apply to the case in
question and this shall be transmitted to Congress.
regular courts shall hear all controversies involving private law in which the
state, a municipality, or any decentralized, autonomous or semiautonomous agency
is a party.3
It is established that the Supreme Court of Justice shall consist of at
least seven magistrates and that it may be divided into chambers whenever the
administration of justice so requires.
The president of the judicial branch is also President of the Supreme
Court of Justice, and his authority in respect of the administration and
discipline of the courts extends throughout the republic.
The Supreme Court of Justice shall make the appointments, removals from
office, exchanges, and transfers of judges of first instance, judges of accounts
and judges of lower courts; and it may also transfer magistrates when this is
considered desirable. The president of the judicial branch has the authority to
appoint the officials and administrative employees thereof; and in accordance
with a technical system to be adopted in the regulations that are to be issued
by the Supreme Court of Justice, he also has the authority to appoint the
clerks, officials, and other employees of the courts of the republic.4
With regard to the Court of Appeals and other courts, the Guatemalan
Constitution provides that the titular and alternate magistrates of the Court of
Appeals and the other courts referred to in Article 253 shall be elected as a
group by the Congress of the Republic; and that the Court of Appeals shall be
formed into as many divisions as may be determined by the Supreme Court of
Justice, which shall also have the authority to fix their residence and
The Contentious-Administrative Court has the duty of hearing cases
involving disputes arising from acts or decisions of the public administration,
or municipalities, and of the decentralized, autonomous or semi-autonomous
agencies, in the course of performing regular duties, and also cases involving
actions deriving from contracts and concessions of an administrative nature.
The judges and the Court of Second Instance of Accounts shall exercise
the judicial function in this matter, and the judges of the first instance of
accounts must have the same qualifications as the judges of first instance of
The Court of Conflicts of Jurisdiction shall meet exclusively in the
following cases: To settle disputes arising between the
Contentious-Administrative Court and the court of ordinary or special
jurisdiction; and to settle those that may arise between the public
administration and courts of ordinary or special jurisdiction. The military
courts are authorized to try crimes and misdemeanors committed by members of the
army in active service, and their jurisdiction extends to military men not in
active service and to civilians only if they act as chiefs or leaders of armed
action against the public powers. These courts shall be governed by the military
laws and supplementarily by ordinary legislation.5
The Special Court of Amparo is composed of the president of the first
division of the Court of Appeals, or in his default, by the president of one of
the other divisions, in numerical order, and six members of the same division,
chosen by lot from among the principals and alternates. This court takes
cognizance of amparo proceedings entered against the Supreme Court of Justice or
any of its members, and against Congress and the Council of State for acts and
decisions that are not merely legislative.6
The Court of Constitutionality consists of twelve members as follows: The
President and four magistrates of the Supreme Court of Justice and the others
chosen by lot in one group by the Supreme Court of Justice from among the
magistrates of the Court of Appeals and the Contentious-Administrative Court.
The Court of Constitutionality shall hear appeals entered against laws or
governmental orders of a general nature on the ground that they contain a
partial or total defect of being unconstitutional. A measure may be declared
unconstitutional only by an affirmative vote of at least eight members of that
An appeal on grounds of unconstitutionality may be entered by the Council
of State; the Lawyer's Association, by decision of its general assembly; the
public ministry, by order of the President of the republic; and any person or
entity affected by the law or government order challenged as unconstitutional,
with the assistance of ten practicing lawyers.
The Court may order suspension of the law or government order if it is
obviously unconstitutional and susceptible of causing damage that cannot be
remedied. If the decision declares that a law or government order of a general
nature is wholly unconstitutional, the law or order is thereby no longer in
effect; and if only partially unconstitutional, that part is thereby without
effect. No appeal of any kind may be entered against a decision of the Court of
As stated in Chapter I of this report, the judicial branch in Guatemala
is governed by its own law, contained in Decree Nº 1762 of the Congress of the
Republic, dated July 2, 1968.
In the operative part of this law, it is stated, among other
considerations, that when the 1965 Constitution is put into effect, it is
necessary to harmonize the provisions of the laws that do not meet the precepts
contained in that fundamental legal code and to introduce reforms into
Guatemalan legislation that contribute to expediting and improving the
administration of justice.
Among the general principles contained in the aforementioned law are the
The prevalence of the law extends to all inhabitants of the Republic,
including foreigners, except in cases of provisions of international law
accepted in Guatemala.
Ignorance, disuse, contrary custom or practice may not be pleaded as
reasons for nonobservance of the law.
Acts executed against the spirit of the law are null, unless the law
itself accepts their validity.
provisions of a la prevail over general provisions thereof.
Rights granted by the law may be renounced, provided that this
renunciation does not run counter to the interests of society and to public
order, or is prejudicial to a third party, nor is prohibited by other laws.
interest of society prevail over private interests.
Judges may not suspend, delay, or deny the administration of justice
without being liable for such action.
Competence, forms of procedure, and means of defense are governed by the
law where the action is taken.
The law of the Judicial Branch regulates the membership and powers of
that branch. In this respect, it regulates the membership of courts, the
chairmanship of the Judicial Branch, Supreme Court of Justice, the Court of
Appeals, judges of first instance, justices of the peace, secretaries of the
courts, decisions of the Supreme Court of Justice and of other courts,
complementary provisions on the matter, terms and periods, cases, judicial
decisions, judgments and their execution, timely application of laws, and
communications, decrees, and penalties. Furthermore, it regulates documents from
abroad, and lawyers and judicial representatives.8
As already stated, the Guatemalan Constitution contains specific
provisions on the aforementioned appeals, and a law was enacted in this regard
on the basis of these provisions, which is contained in Decree Nº 8 of the
Constituent Assembly of May 3, 1966. The preamble of this law sets forth the
following considerations as the basis thereof: “that in accordance with the
principles on which the democratic organization of Guatemala is based, standards
and appeals should exist to guarantee due respect to civil liberties, the rights
of the individual, and the fundamental principles governing the life of a
country, in order to ensure the rule of law;” and “that for this purpose a
law should be issued adequately developing the principles of the basis of amparo
as a guarantee of due process and habeas corpus as a guarantee of liberty,
within a consistent system that ensures the supremacy of the constitution in all
As previously stated, the Constitution of the Republic contains
provisions referring to amparo. For its part, the aforementioned law establishes
that every person has the right to petition for amparo in the following cases:
order that his enjoyment of the rights and guarantees established by the
Constitution or any other law may be maintained or restored.
specific cases, to obtain a ruling that a law, regulation, or decision, or act
of authority is not binding on the petitioner because it contravenes or
restricts any of the rights guaranteed by the Constitution or recognized by any
specific cases, to obtain a ruling that an order or resolution that is not truly
a legislative act of the Congress does not apply to the petitioner because it
violates a constitutional right.
the authority of any jurisdiction issues a regulation, agreement, or decision of
any nature that abuses its authority or exceeds its legal powers, even when it
lacks them or exercises them in such a way that the grievance caused or that may
be cause to the petitioner cannot be remedied by any other legal means of
administrative action requires the person affected to comply with unreasonable
or illegal requirements, measures, or activities.
the petitions and legal procedures before the administrative authorities are not
resolved within the period established by law, or if no such term is
established, within thirty days after the particular proceeding has been
electoral matters, in keeping with the provisions established in the
Constitution and in the law.
infractions of the procedure taken by the Supreme Court of Justice in matters
submitted to it for consideration, provided that no final judgment has been
issued and no other appeal is in order, of if this is exhausted, the violation
Regarding competence concerning this appeal, the Tribunal Extraordinario
de Amparo (The Special Court on Amparo) takes cognizance of such appeals as are
appropriate against the Supreme Court of Justice or any of its members, against
the Council of State, and against the Congress for acts and decisions that are
not purely of a legislative nature. The Supreme Court of Justice in plenary
takes cognizance of the complaints filed against the President and Vice
President of the Republic and the same court or appropriate chamber considers
those filed against Minister of State or vice ministers; against the civil,
penal, labor and military courts of the Court of Appeals, Office of the
Comptroller of the Currency, and the Contentious-Administrative Court or any of
its members; against the Attorney General of the nation; and against diplomatic
representatives of any category.
Moreover, the law prescribes appropriate competence to consider appeals
for amparo to the Court of Appeals of common law and to judges of the first
instance of this law in their respective jurisdictions.
The appeal for amparo must be lodged in writing, filling the appropriate
legal requirements, and judges and courts must process them in the same court in
which they were presented. Moreover, the aforementioned law describes the
effects produced by the declaration of justification for the appeal for amparo
and, moreover, establishes that the petition for appeal may be lodged against
the judgments of the courts of amparo and against the ruling that deny or grant
provisional amparo. The law adds that when the special court on amparo and the
Supreme Court or appropriate chamber considers an appeal for amparo there shall
be no recourse against their decision other than that of the personal liability
of their members. It also regulates the cases in which the appeal for amparo is
inappropriate and general provisions on different aspects of this matter.
The appeal for habeas corpus, based on the Constitution, is regulated by
this law, which establishes that any person who finds himself illegally
imprisoned, detained, or restrained in any other way in the enjoyment of his
individual liberty, who is threatened by the loss of it, or suffers grievances
even when his imprisonment or detention is based on law “has the right to
request an immediate hearing before the courts of justice, whether for the
purpose of obtaining the restitution of his liberty, for bringing the grievances
to an end, or for terminating the constraint to which he is subject.”
The proceeding of a personal hearing may be initiated before any court,
which shall have the power to order the urgent measures required by the case and
refer the matter without delay, with a report of action taken, to the competent
court. The appeal may be entered by the injured party or by any other person in
writing, by telephone, or orally, with no need to accredit representation to
anyone and with no requirements of any kind. The proceeding may also be
initiated or demanded officially when the courts of justice in any way learn
that some person is in the circumstances indicated, that is, in circumstances
that give rise to the entering of this appeal.
The competence of the courts with regard to this appeal, is governed by
the provisions of Chapter II of the law, that is, the competence to which we
referred in analyzing the appeal for amparo.
With reference to the appeal for habeas corpus, the courts and the
executor, if there is one, may request the aid of the police force for
compliance with its decisions, and the Executive must provide it immediately,
under the responsibility prescribed by the Penal Code. The law establishes that
authorities who order the concealment of the detained person or who refuse to
present him to the proper court, or who in any other way frustrate the guarantee
of habeas corpus, as well as agents who carry out such an order, shall be
considered to have committed the crime of abduction, shall be separated from
their posts and punished in accordance with the law. It also provides that when
a person is detained because of safety measures taken in application of the law
on public order, the hearing shall be held in the place where he is detained and
shall be restricted to determining treatment of the person detained.
In accordance with the Guatemalan juridical system, courts of justice
must always observe the principle that the Constitution prevails over any law or
international treaty. Before judgment is passed in specific cases in any
instance and in cassation, the parties may bring up the unconstitutionality of
the law in whole or in part, and the court must give an opinion in this respect.
The complaint of unconstitutionality is based on the provisions of the
basic text referred to earlier. In accordance with the law already alluded to,
the Court on Constitutionality is made up in the form established by the
Constitution and already referred to in this chapter. This court is responsible
for considering complaints entered against laws or general governmental orders
on the grounds that they are unconstitutional in whole or in part.
As already stated, this complaint may be entered by the Council of State,
the Lawyer's Association, the Public Ministry, and by any person or entity
affected directly by the unconstitutionality of the law or governmental
provision challenged, with the assistance of ten practicing lawyers. The court
may order suspension of the law or governmental order if the unconstitutionality
is serious and may cause irreparable damage. As has already been said, if the
decision declares that a law or general governmental order is wholly
unconstitutional, it shall be without effect, and if only partially
unconstitutional, that part is thereby without effect. In both cases, the effect
ceases on the day following publication of the decision in the Diario Oficial.
The political and social upheaval prevailing in Guatemala has given rise
to violations of the rights to justice and due process, involving the
responsibility of the government of that country for acts of commission or
The widespread violence disturbing this country has created a climate of
terror and repression, the effects of which directly affect compliance with the
laws and the administration of justice.
The Guatemalan legal code, as already explained, is broad and exhaustive
in its establishment of a structure to regulate guarantees for the exercise of
this right. The Constitution of the Republic and the laws through which it
evolves clearly provide for the legal regulation of justice and due process, so
that this right may be fully observed.
Notwithstanding, in practice the administration of justice does not
really correspond to the provisions in the legal system on the matter,
especially with regard to the protection of fundamental human rights. The
independence of the judicial power, constitutionally proclaimed, does not
function in practice, and this has produced lack of confidence in the actions of
the Judicial Branch.
These circumstances have given rise to arbitrary action and repression,
prejudicial to the administration of justice and the effect of due process.
Examples of this are the murders of lawyers and judges; the failure of
authorities to investigate these crimes; the ineffectiveness of the legal
remedies contained in the legal code; and indications that the police force has
undertaken organized actions to break up an y activities giving evidence of
opposition to government sectors.
The Constitution gives the Lawyer's Association an important role in the
function of guaranteeing the constitutionality of the laws. In this respect, it
gives it the power to enter the complaint of unconstitutionality, at the
decision of its general assembly, but there is no evidence that this is actually
done or that this power produces effective results.9
In the preceding paragraph and in the chapter on the Right to Life, it
has been stated that one of the consequences produced by the climate of violence
and repression prevailing in Guatemala and affecting the observance of the right
to justice and due process is the murder of judges and lawyers.
In addition to criminal acts, this dramatic situation also covers the
disappearance, kidnapping, holding of hostages, and persecution of practicing
members of the legal profession and officers, with the purpose of obstructing
compliance with the law and application of justice and of aggravating present
conditions of panic, terror, and uncertainty.
The Commission has received information and denunciations on acts such as
those mentioned. One example of that is the denunciation presented to the
Commission on March 30, 1981 by the Center for the Independence of Judges and
Lawyers, with headquarters in Geneva. The Commission proceeded to open the case
and to process this denunciation, the pertinent parts of which are the
We have been receiving news of acts of violence against members of the
legal profession in Guatemala. A short time ago, we received a report on the
disappearance or murder of 15 lawyers, judges, and members of law schools during
the years 1980 and 1981. The number of those murdered or who have vanished
between January 1980 and January 1981 totals 35, representing a drastic growth
in the number of such incidents over preceding years and almost without
precedent in Latin America.
This seriously affects the capacity of lawyers and judges to fulfill
their professional commitments, independently and without fear, and also the
right of citizens to effective vindication of their legal rights within the
One interesting aspect of this eruption of violence is the type of
professional activity of the victims.
Included are lawyers of different types, but those practicing labor law
and working in the “Bufete Popular” (Legal Aid Office for the People) of the
university and representing the campesinos and Indian organizations have been
the most affected. In several cases, there are indications that the judges were
subject to violence because of their professional activities. The murders of
judges Marroquín, Villagrán, and Valdéz in September 1980 are examples of
this. They suggest a premeditated effort by those responsible to deprive certain
sectors of society of effectively having access to the rights guaranteed by the
laws of Guatemala, and to discourage the impartial exercise of judicial powers.
As inferred from the following cases, these murders and disappearances
have generally occurred during the day, almost always in very open places, and
the methods used are almost always the same. From what we have been able to
determine, in none of the cases have the persons responsible been brought to
justice. This give the impression that the safety forces have consented to or
collaborated with the violence.
Following are details of the deaths and disappearances:
Jaime Rafael Marroquín Barrido. Judge of the Criminal Court of
Guatemala City. Murdered on September 9, 1980, at 2:45 by two men on a
motorcycle, while he was walking through the capital. It has been alleged that
the judge was trying certain politically-sensitive cases and that he had
received several death threats. Apparently, he had no political affiliation nor
was he involved in any activities of that nature.
Cristóbal Arnulfo Villagrán Diéguez. Legal assistant to Judge
Marroquín, murdered in that same attack.
Héctor Augusto Valdez Díaz. Judge, 34 years of age, member of
the same court as Marroquín. He was murdered on September 16, 1980, on the same
day that he was assigned to handle Marroquín's cases. Judge Valdez was killed
by machine gun by several men riding in cars and bicycles while he was driving
to work at 7:00 a.m.
Fulgencio Napoleón Díaz Herrera. Distinguished judge in the city
of Huehuetenango, was similarly murdered on September 16, 1980. He was shot by
two men who came to his office one night, just as he was closing up.
César Augusto Saltallana Hernández. Justice of the Peace of
Escuintla, was kidnapped on September 24, 1980 by a group of armed men.
Ricardo Galindo Gallardo. Lawyers. It was reported that he had
vanished following his arrival in Guatemala City on a flight from Panama on
October 6, 1980. There are no further details on the incident.
Pablo Emilio Valle de la Pena. Prominent labor lawyer, was
murdered on October 10, 1980. He was machine gunned from a passing car when he
was driving in a suburb of Guatemala City.
Rodolfo Montoya Guzmán. Lawyers, who worked in the legal aid
clinic of the branch office in Escuintla of the University of San Carlos. Was
murdered by machine gun at his home, in the presence of his wife and three
children on October 17, 1980.
Rigoberto Asoche. Justice of the Peace of San José, Escuintla,
was found strangled on November 16, 1980.
Leonel Roldán Salguero. Social scientist, 42 years of age,
professor in the School of Law of the University of San José, was kidnapped on
November 17, 1980 while driving in the capital. His wife, who accompanied him,
was murdered by machine gun during the incident. Eighteen days later, Professor
Roldán's body was found on a road several kilometers from the capital. The body
showed multiple gunshot wounds and signs of torture.
Miguel Angel Curruchiche Gómez. Lawyers, with offices in
Chimaltenango and Guatemala City, was murdered by machine gun at 1:00 p.m. on
November 20, 1980 while driving through the capital. His 14-year old son and one
other person accompanying him also died in the attack. Mr. Curruchiche was the
lawyer representing an Indian association in Comalapa.
Gilberto Jiménez Gutiérrez. General Supervisor of the Courts,
was murdered in Guatemala City on December 12, 1980. Before assuming this
position, he had a private law practice, was judge in a civil court, and served
as confidential secretary to the former President of the Supreme Court of
Guatemala. At the time of his murder, he had been suspended for some time from
his duties as General Supervisor, for reasons that were not made public. When
driving home for lunch at 1:00 p.m., he was machine gunned by a group of men
traveling in a station wagon. His chauffeur also died in the attack.
Augusto Sac Necancoj. Lawyer of 70 years, murdered in
Quetzaltenango on December 16, 1980. Upon returning to this office from his
house, his car was intercepted on the highway, and he was dragged out of his car
and shot. Mr. Necancoj was a member of the Revolutionary Party, which forms part
of the government coalition, but he had not been politically active in recent
years. He was a member of the Association of Indian Professionals.
Saúl Najarro Hernández. Lawyer, was murdered upon reaching his
office in the center of the capital on the morning on January 21, 1981.
Witnesses indicated that his assailants tried to kidnap him, but he resisted and
was shot nine times. At the time of his murder, Mr. Najarro, who had been a
judge, was working on several important cases. He had received death threats,
and according to newspaper articles, had requested police protection.
Abel Lemus Véliz. Lawyer, 45 years of age, was murdered on
January 27, 1981. While driving in the capital in the middle of the day, he was
shot by assailants in a passing vehicle. A lawyer who was active in civil and
penal law, Mr. Lemus was also secretary for worker and campesino affairs of the
Democratic Social Party FUR.
Other acts of violence include the attempt to kidnap the lawyer Fredy
Rolando Ríos Cifuentes in Mazatenango on or about November 7, 1980; the
wounding of the Justice of the Peace, Oscar Armando Gómez Figueroa of
Chichicastenango on or about December 28, 1980; and the attempted murder of Eliézer
Nehemías Cifuentes y Cifuentes en Chimaltenango at the end of 1980.
As eloquent testimony of the way in which justice operates in Guatemala,
the Commission wishes to bring to mind the repeated efforts taken by Dr.
Francisco Villagrán Kramer, in his position as Vice President of the Republic,
to see to compliance with the law through the resources provided for in the
legal code, and measures were taken for the effective functioning of the right
to justice and to due process.10
8 of the American Convention on Human Rights reads as follows: “Right
to a Fair Trial. 1. Every person has the right to a hearing, with due
guarantees and within a reasonable time, by a competent, independent, and
impartial tribunal, previously established by law, in the substantiation of
any accusation of a criminal nature made against him or for the
determination of this rights and obligations of a civil, labor, fiscal, or
any other nature. 2. Every person accused of a criminal offense has the
right to be presumed innocent so long as his guilt has not been proven
according to law. During the proceedings, every person is entitled, with
full equality, to the following minimum guarantees: a) the right of the
accused to be assisted without charge by a translator or interpreter, if he
does not understand or does not speak the language of the tribunal or court;
b) prior notification in detail to the accused of the charges against him;
c) adequate time and means for the preparation of this defense; d) the right
of the accused to defend himself personally or to be assisted by legal
counsel of his own choosing, and to communicate freely and privately with
his counsel; e) the inalienable right to be assisted by counsel provided by
the state, paid or not as the domestic law provides, if the accused does not
defend himself personally or engage his own counsel within the time period
established by law; f) the right of the defense to examine witnesses present
in the court and to obtain the appearance, as witnesses, of experts or other
persons who may throw light on the facts; g) the right not to be compelled
to be a witness against himself or to plead guilty; and h) the right to
appeal the judgment to a higher court. 3. A confession of guilt by the
accused shall be valid only if it is made without coercion of any kind. 4.
An accused person acquitted by a nonappealable judgment shall not be
subjected to a new trial for the same cause. 5. Criminal proceedings shall
be public, except insofar as may be necessary to protect the interests of
justice.” Article 9 reads as follows: “Freedom from Ex Post Facto
Laws. No one shall be convicted of any act or omission that did not
constitute a criminal offense, under the applicable law, at the time it was
committed. A heavier penalty shall not be imposed than the one that was
applicable at the time the criminal offense was committed. If subsequent to
the commission of the offense the law provides for the imposition of a
lighter punishment, the guilty person shall benefit therefrom.” Article 10
reads as follows: “Right to Compensation. Every person has the
right to be compensated in accordance with the law in the event he has been
sentenced by a final judgment through a miscarriage of justice.” Article
24 of the Convention reads as follows: “Right to Equal Protection.
All persons are equal before the law. Consequently, they are entitled,
without discrimination, to equal protection of the law.” And Article 25
reads as follows: “Right to Judicial Protection. 1. Everyone has
the right to simple and prompt recourse, or any other effective recourse, to
a competent court or tribunal for protection against acts that violate his
fundamental rights recognized by the constitution or laws of the state
concerned or by this Convention, even though such violation may have been
committed by persons acting in the course of their official duties. 2. The
States Parties undertake: a) to ensure that any person claiming such remedy
shall have his rights determined by the competent authority provided for by
the legal system of the state; b) to develop the possibilities of judicial
remedy; and c) to ensure that the competent authorities shall enforce such
remedies when granted.”
43, 48, 50, 53 and 62 of the Constitution.
240, 241, 242, 245, 246 and 247 of the Constitution.
249, 251 and 252 of the Constitution.
Articles 253, 254, 255, 256, 257, and 259 of the Constitution.
Articles 260 of the Constitution.
262, 263, 264, 265 of the Constitution.
1 and those following of the Judicial Body.
to this point and to the procedure for the declaration of
unconstitutionality, the following observations are made, among others, in
the report of the mission sent to Guatemala by the International Commission
of Jurists in June 1979: “Although this is a complete legal instrument for
the protection of the rights established in the Constitution, the use of it
is affected by political considerations. For example, although amparo is
invoked frequently, the decisions are taken on the basis of technicalities
and not on the real fundamentals of the case; moreover, the procedure is not
considered appropriate with regard to high officials of government. The
Lawyer's Association is in a position of special responsibility, by virtue
of Decree Nº 8 of the Constituent Assembly and the Constitution. It
embraces all of the two thousand lawyers in the country and obtain its
income from a stamp tax on authorization of documents and from the dues paid
by its members. It hears the complaints of the public against lawyers and
proposes names for members of juries in cases of trials for slander. Since a
great number of victims of political murders have been lawyers, the
association has condemned the fact that none of those responsible has been
caught; however, so far it has taken no steps to investigate the murders or
to demand that the government investigate them.”
Nº 7789. The pertinent parts were transmitted to the Government of
Guatemala by the Commission in its communication of April 27, 1981.
May 30, 1980, the then Vice President Villagrán Kramer addressed the
Attorney General of the nation in the following terms: “I am sending you
herewith a clipping from the newspaper Prensa Libre for May 10 of this year,
in which the Mayor of Escuintla, Marco Tulio Collado Pardo, reports on a
number of acts of intimidation, which had already been reported in other
newspaper. Since this concerns a publicly elected official, and it is stated
in the newspaper report itself that the competent authorities of Escuintla
have taken no action in this case, I believe that this published
denunciation might give the public Ministry a basis on which to take such
legal action as it deems appropriate in defense of the Mayor. In any case, I
think that the Mayor of Escuintla might provide further information on the
June 20, 1980, he addressed the President of the Supreme Court in the
following terms: “This is to express to you and, through you, to the
Honorable Supreme Court of Justice, my deep concern at the situation of a
university student, Víctor Valverth, whose defense attorney has had to give
up his defense, and whose family is having trouble in finding a substitute.
Under Article 43 of the Constitution, the state guarantees as rights
inherent in the human person: 'life, corporeal integrity, dignity, personal
security, and that of his property.' The Constitution also establishes the
guarantee of legal due process, which entails the right to defense in a
trial. I am bringing this matter to your attention, in view of the press
reports regarding it, and because I believe that the Supreme Court should
ensure correctness in due process and defense.
few days after, on June 24, 1980, he addressed the President of the Judicial
Branch as follows: “The Central Nacional de Trabajadores (CNT9 published a
document in today's La Prensa in which it reports to the public on the
events that occurred at its headquarters on June 21 at 3:30 p.m. and in
point IV demands: 'That the physical integrity of our colleagues be
respected, and that they be turned over to the courts of justice immediately
and later be freed.' In view of the seriousness of the denunciation and the
juridical importance of the petition within a code of law, I think it
appropriate for the government to take action ex officio, in accordance with
Article 77 of Decree Nº 8 of the Constituent Assembly, which established
personal appearance. I am enclosing the text of the publication and, since
his falls within the competence of the Judicial Branch, I shall appreciate
it if you will order the taking of whatever measures and steps that are
appropriate. I don't doubt that as President of the Judicial Branch, as a
lawyer, and as a citizen, you will share with me, as Vice President, lawyer
and citizen, the desire that the inhabitants of our nation enjoy to the
fullest the rights and guarantees established by the Constitution in their
July 3, 1980, he again addressed the President of the Judicial Branch as
follows: “In reading today in Prensa Libre the text of the statement that
you sent to the International Conference of Appellate Judges, held in
Australia, I consider appropriate to refer to the case of the trade union
leaders. Of the CNT, which has been made known to you. I received a number
of cables from abroad expressing concern for the safety of these trade union
leaders. Enclosed are photocopies of the messages received. In the light of
this text, you can appreciate the impact that these events have made abroad.
In keeping with Article 77 of the law on amparo, habeas corpus, and
constitutionality, the courts of justice should act ex officio, because of
the information they have received through the material published in La
Prensa by the CNT itself, an issue of which I sent you. Under Article 78 of
that same law, all judges and magistrates of the Republic must observe the
principle of personal appearance in their jurisdictions, and they are
subject to the effects established by this principle. It might be said that
the current state of affairs of the law is complicated and difficult. But we
must also recognize that the Judicial Branch has to make use of all
instruments and mechanisms within its power to ensure the authority of the
law to the greatest extent possible. In taking office as Vice President of
the Republic, I took an oath to uphold the Constitution of the land and to
see that it be upheld. It is in compliance with that duty that I address
you, as President of the Judicial Branch and of the Supreme Court of
Justice, to ask that you take whatever steps are appropriate within the
legal system of Guatemala.”